Can We Live With Arbitrary Laws?

RTE Radio One held a panel discussion on one of its chatshows last Sunday, one of those ‘review of the week’ things. Inevitably, the case of ‘Miss Y’ and her prematurely delivered child came up, and produced thse really striking words on the subject from Irish Independent Legal editor Dearbhail McDonald. In response to a reference by Irish Times columnist Breda O’Brien (full disclosure – Breda is my mother) to “a standard pro-choice person”, McDonald said:

There is no such thing. There are people in Ireland who will regard themselves as pro-life, but can live with the moral ambiguity of saying “well look, I’m pro-life, but I do support termination of pregnancy in the cases of rape, incest, and fatal fetal abnormality. It mightn’t withstand any intellectual interrogation, but they would take offence at being described as a “standard pro-choice person.”

Now, people say all sorts of things in the heat of a radio discussion, and I’m not of the view that such slips of the tongue are necessarily indicative of what a person really thinks (not saying that’s necessarily what happened here, just that it may or may not represent McDonald’s actual position).

But I’m interested in the issues McDonald’s comment raises, because defences of laws that are somewhat arbitrary, that privilege “what works” or “what we as a nation can live with” over  “ability to withstand intellectual interrogation” are by no means a preserve of the cultural left. The position on abortion that McDonald articulates, is, after all, extremely similar to that taken by the last three Republican presidential nominees.

Ross Douthat wrote a compelling case for legal arbitrariness a couple of years ago on his New York Times blog. Acknowledging that the compromises reached on marijuana and casino gambling in the United didn’t really make all that much sense from a purely rationalist perspective, he said that they had value nonetheless:

We have these inherited limits — geographic, legal — on certain vices, certain self-destructive activities. They are inherently arbitrary, yes — but they also may do useful work regulating how easily and casually and frequently people indulge in those vices, and they may strike a balance between puritanism and permissiveness that’s socially useful even if isn’t perfectly consistent or obviously fair. Whereas making consistency our north star requires either accepting an unsustainable level of repression (adding a reboot of Prohibition to the War on Drugs, say, or telling Americans that Vegas is closed and they have to fly to the Caribbean for those kind of thrills) or a damaging level of permissiveness … with the latter, quite possibly, being what we’re headed for today.

Douthat’s piece really clarified my thinking on this question: The law is a blunt instrument, and in a fallen world it’s not always worth pursuing perfect rational consistency at the expense of an inconsistent or hypocritical legal compromise that nonetheless does a pretty OK job of safeguarding the common good. Sometimes it’s better to leave Chesterton’s Fence standing, even if the wood is rotten.

But there are a couple of questions that I’d ask about any such arbitrary-but-useful compromise. First, will it actually work as advertised? In Ireland’s Sunday Business Post, political correspondent Pat Leahy analysed a wealth of opinion polls on on Irish attitudes to abortion, and examined some of the internal contradictions they revealed.

A point could be made about the rape exception. Polls suggest a large majority of people are in favour of permitting abortions in cases of rape. But I think they are more or less against what any sensible rendition of this exception would mean – that any woman who does not at that time offer full informed consent to be pregnant is entitled to a legal abortion. Otherwise, how would you judge who is a rape victim? It could hardly be that a conviction has been secured by the courts.

…

In all, Ireland seems to be, by international standards, a pretty pro-life country, though it is more pro-choice than its laws currently suggest. But Irish people are also deeply concerned by the distressing cases which the current law is likely to throw up.

Another way of putting it is that Irish people want a generally pro-life legal environment, but without the hard cases that such rules necessarily imply. This may be slightly dishonest. But I actually don’t think it is ignoble.

However, it may not be sustainable either.

But as well as such practical concerns, I’d also argue that the level of acceptable arbitrariness varies considerably depending on the kind of law under discussion. The law has to uphold the common good, yes – but it also must uphold the dignity of the individual. And the more a law deals with key questions of human dignity, the less defensible arbitrary arrangements are, be they appeals to tradition, emotion, or pragmatism.

Whether or not one can legally smoke pot is a much less significant question than whether or not one can legally get married, which in turn is a less significant question than whether or not one has a legal right to life.

Arbitrariness in protecting life, limb and liberty is among the worst kinds of tyranny. It’s the reason why people prefer autocracy to chaos, why Napoleon was a better option than the Terror. Ultimately, every law affects someone, and the makers of that law have to justify its existence to them. And the more the law deals with questions of human dignity, the less a society can stand over arbitrary compromises – we have to give those who end up on the wrong side of the lines we draw a better answer than “well, this may not stand up to any intellectual interrogation, but it works for us.”

Sometimes, legal consistency becomes moral necessity.